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2014 DIGILAW 914 (PAT)

Manoj Ram @ Digha Ram v. State of Bihar

2014-08-26

PRABHAT KUMAR JHA, V.N.SINHA

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ORAL JUDGMENT V.N. SINHA, J. By filing the present appeal appellant has questioned his conviction recorded under judgment dated 30.10.2009/20.11.2009, passed by Additional District & Sessions Judge, F.T.C.-II, Muzaffarpur in Sessions Trial No. 791 of 2006, whereunder he has been convicted for the offence under Section 302 of the Penal Code and directed to suffer imprisonment for life with further direction to pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer further rigorous imprisonment for six months. 2. Prosecution case, as set out in the fardbeyan of the informant Raj Kumari Devi (P.W. 3), recorded in the Emergency Ward of S.K.M.C.H., Muzaffarpur by Raj Kishore Singh, Officer-in-Charge, Ahiyapur Police Station on 20.06.2006 at 10:00 hours in front of the dead body of her brother Shiv Mahto is that yesterday on 19.06.2006 around 11:00 P.M. she had come back home after performing in the musical function in the Barat Party. Her brother Gauri Shankar Mahto (P.W. 2) was also present in the house. She heard her another brother Shiv Mahto (deceased) crying near his tea-biscuit shop, went there and saw that both the legs of her brother was tied with a rope by the appellant, who having knocked him down was assaulting her brother with a battery box (hard blunt substance). Having seen the occurrence informant along with her brother Gauri Shankar Mahto raised alarm in the locality that her brother is being assaulted by the appellant after being tied with a rope. Meanwhile, appellant continued with the assault on his brother. Hearing the alarm others from the locality also came to the place of occurrence whereafter appellant ran away brandishing, firing shot from the country made pistol in order to scare away the local people. Informant untied the rope of her brother who disclosed that he asked the appellant to clear the dues of Rs. 60/-, in retaliation appellant assaulted him. Having found the injuries on the person of her brother, informant took him with the help of others to the Sadar Hospital where his condition being serious, the doctors referred him to S.K.M.C.H., Muzaffarpur. Informant untied the rope of her brother who disclosed that he asked the appellant to clear the dues of Rs. 60/-, in retaliation appellant assaulted him. Having found the injuries on the person of her brother, informant took him with the help of others to the Sadar Hospital where his condition being serious, the doctors referred him to S.K.M.C.H., Muzaffarpur. During the way when the informant, injured and others reached near Akharaghat bridge, the victim succumbed to the injuries and was brought dead in the Emergency Ward of S.K.M.C.H. where the fardbeyan was recorded on 20.06.2006 at 10:00 A.M. The Officer-in-Charge of Ahiyapur Police Station having recorded the fardbeyan forwarded the same to Officer-in-Charge, Town Police Station, Muzaffarpur, as place of occurrence of the present case was within the jurisdiction of the Town Police Station. In the light of the fardbeyan, Officer-in-Charge, Town Police Station, Muzaffarpur registered the formal First Information Report bearing Town P.S. Case No. 226/06 dated 20.06.2006 (Exhibit-2) at 21:45 hours (9:45 P.M.) and entrusted the investigation to S.I. Suresh Prasad Ram (P.W. 8). During investigation, Investigating Officer examined the informant, other eye-witnesses and others as also collected post-mortem report of the deceased and having found the case true against the appellant submitted charge-sheet against him. 3. In the light of the charge-sheet, cognizance was taken and after service of police papers the case was committed to the court of Sessions. Charges were framed, which the appellant denied and claimed to be tried. In order to support the charge, during trial, the prosecution examined as many as 11 witnesses. 4. P.W. 1 Lalo Devi is the resident of the same locality and is an eye-witness of the occurrence. P.W. 2 Gauri Shankar Mahto is the brother of the informant, named in the fardbeyan and is also an eye-witness of the occurrence. P.W. 3 Raj Kumari Devi is the informant of the case. P.W. 4 Sita Ram Mahto is the proprietor of the adjoining betel shop, is also an eye-witness of the occurrence. P.W. 5 Kanti Devi is the wife of the deceased who came to the place of occurrence after hearing the alarm raised by the informant and is a hear-say witness. P.W. 6 Sanjay Kumar is also a resident of the locality, is a hear-say witness. P.W. 7 Dr. Sohan Prasad Choudhary is the doctor who conducted post mortem on the person of the deceased. P.W. 6 Sanjay Kumar is also a resident of the locality, is a hear-say witness. P.W. 7 Dr. Sohan Prasad Choudhary is the doctor who conducted post mortem on the person of the deceased. P.W. 8 Suresh Prasad Ram is Sub-Inspector, who investigated the case. P.W. 9 Sone Lal Mahto is also a resident of the locality and an eye-witness of the occurrence. P.W. 10 Deepak Mahto has been declared hostile by the prosecution. P.W. 11 Ram Vilash Mahto is a resident of the locality and besides being an eye-witness of the occurrence, is also a witness of seizure of battery box by which appellant assaulted the deceased. 5. P.W. 3 Raj Kumari Devi, informant, and the other eye-witnesses of the occurrence have supported the story of assault made by the appellant on the person of the deceased with a battery box. Their testimony appears to be a natural narration of the occurrence as it has happened in the fateful night. During the cross-examination the witnesses have stood the test of cross-examination and there is nothing in their cross-examination which shakes the merit of the prosecution case that the deceased asked the appellant to clear his dues of Rs. 60/- which led to an altercation between the appellant and the deceased in which appellant got infuriated, picked up the battery box lying there and assaulted the deceased with the same. 6. In view of the prosecution evidence, counsel for the appellant submitted that the prosecution story, as disclosed during trial, may be true, and even accepting the same to be true, the offence under Section 302 of the Penal Code does not appear to be proved against the appellant. In the facts and circumstances of the present case the assault being preceded by altercation in which appellant became infuriated, picked up the battery box lying there and assaulted the deceased with the same, his case is covered by one of the exceptions of Section 300 of the Penal Code. Battery box being not a weapon, appellant cannot be attributed with the intention, knowledge to cause death of the deceased with the same. It is submitted that appellant at best may be having the intention to beat the deceased but causing of death was never the intention of the appellant. Battery box being not a weapon, appellant cannot be attributed with the intention, knowledge to cause death of the deceased with the same. It is submitted that appellant at best may be having the intention to beat the deceased but causing of death was never the intention of the appellant. In this connection learned counsel referred to the medical evidence available on record and the evidence of the doctor (P.W. 7) and submitted that the body of the deceased was found swollen with bruise all over the body. There was no fracture of bones found in course of post mortem. With reference to the aforesaid evidence it is submitted that had the appellant any intention to kill the deceased, the injuries found on the person would not have been only bruise. He further submitted that from the evidence of the informant and other eye-witnesses itself it is evident that the appellant was also armed with fire-arm, which he waved while making good his escape from the place of occurrence but the said fire-arm was never used by him against the deceased. He also referred to the contents of the food items, alcohol found in the stomach of the deceased and then submitted that cause was Syncop due to above mentioned injury. The injuries found on the person of the deceased being bruise caused by battery box (made of plastic) can never be with the intention, knowledge to cause death of the person who is being assaulted with the battery box. 7. In view of the prosecution case that the appellant, though armed with fire-arm but never used the same against the deceased and caused bruise and swelling of the body with the battery box, he can never be attributed with the intention, knowledge of causing death of the deceased. 8. In view of the evidence on record, the finding recorded by the court below that the offence under Section 302 of the Penal Code is proved against the appellant does not appear to be correct. 8. In view of the evidence on record, the finding recorded by the court below that the offence under Section 302 of the Penal Code is proved against the appellant does not appear to be correct. In the facts of the case, conviction of the appellant is required to be converted from Section 302 of the Penal Code to one under Section 304 Part-II of the Penal Code and he is directed to undergo sentence of rigorous imprisonment for nine years but shall be entitled to the benefit under Section 428 Cr.P.C., whereunder the convict is allowed set off against the sentence of imprisonment. Appellant, however, must deposit the fine which shall be paid to the widow of the deceased (P.W. 5). 9. With the aforesaid modification in the conviction, sentence passed against the appellant, the appeal is allowed.